hundred and fifty dollars, would amount to four hundred and
fifty dollars : and the other of ten per cent., which would
amount to one hundred and thirty-five dollars, if calculated on
the same sum. This action is brought to recover these two
dividends.

On the trial of the cause, John Strawbridge was offered as a
witness by the plaintiffs, to prove that the note of thirteen
hundred and fifty dollars was drawn by George Strawbridge
for the use and accommodation of the witness. He was objected
to by the defendants' counsel, but admitted by the judge who
tried the cause. He testified that although George Strawbridge
was indebted to him on his private account, in the sum of
thirty-three dollars, and on their partnership accounts in the
sum of nine thousand dollars, yet the note was not given or
drawn on account of this indebtedness, but for the accommoda-
tion of the witness, with an understanding that he was to take
it up when due, wherever he might get it discounted : That he
did not seek payment of the debt owing to him by George, because
he knew from his circumstances that he was unable to make it.

A verdict of the jury was given in favour of the plaintiffs for
five hundred and eighty-five dollars, with interest from the times
of declaring the dividends respectively, subject, however, to the
opinion of this court, whether, on the whole of the evidence,
which went to establish the facts as already stated, the plain-
tiffs were entitled to recover anything in this action, and if
they were, the court to say what amount.

The first question which presents itself is, was John Straw-
bridge a competent witness; and in the next place, was his tes-
r*qi-|-| timony *admissible? I cannot perceive that he had
J such an interest in the event of this suit, as would ren-
der him incompetent. It is true, it has been urged with great
ingenuity, and I must confess too, with great force, that the
plaintiffs are not embraced in the assignment made by John
Strawbridge : That he was not their debtor at that time, nor yet
at the time when they executed the release to him : That he did
not become their debtor until the 23d of October, 1822, when
the note was protested for non-payment by the drawer, and
notice thereof given to him, and that the release which was exe-
cuted on the 14th of that same month, applied only to debts
then existing, and could not therefore be a release of the claim
of the plaintiffs, arising upon this note : That the witness is,
therefore, still liable in his person and property to the plaintiffs
for the payment of the whole amount of the note ; but the re-
covery of the plaintiffs in this action will relieve him from this
liability pro tanto, which shows that he is directly interested in
maintaining the plaintiff's recovery, and therefore an iucompe-
348



March 29, 1833.] OF PENNSYLVANIA. 311

[Bank of Pennsylvania v. M'Calmont.]

tent witness to sustain it. I, however, after a good deal of in-
quiry as to the practice and understanding which have obtained
in regard to assignments similar to those in the present case,
which for many years past have been very common in some
parts of this state, and especially in the city and county of Phil-
adelphia, and likewise, after a very deliberate consideration of
the whole matter, am of opinion that the plaintiifs and their
claim upon the note against the witness are embraced in the
assignment made by him, and that he is discharged by the re-
lease from all his liability on account of the note, or the indorse-
ment of it, and that all objection to his competency as a witness,
on the score of interest, is removed. It has, however, been
further objected, that he was incompetent, and .ft is testimony
ought not to have been received, because repugnant to a prin-
ciple of mercantile policy, which will not permit a party to ne-
gotiable paper, to annul it, or to change its features or character,
after he has in the ordinary course of business given currency
to it : That this was the effect of the testimony of the witness,
who, after having passed the note by indorsement to the plain-
tiffs in this case, was called on to prove that it was drawn by
the drawer for his, the witness's accommodation, in order to
raise money exclusively for his own use, and was discounted by
the plaintiffs, from whom he received the proceeds thereof,
which he applied to his own use ; and was bound by his agree-
ment with the drawer and payee of the note, to pay and take it
up at maturity ; thus making himself substantially, as it is con-
tended, the drawer of the note, instead of the indorser, and
making his liability, as that of the drawer also, different from
the purport of the note itself, and the indorsement thereon.

The true meaning of this rule is, as I apprehend, that the
party, having given currency to such paper, shall not be per-
mitted to invalidate it, nor to impair it as a security, nor to
change the liabilities of the parties respectively, contrary to the
tenor and form of the note or paper and the indorsements there-
on, to the prejudice of the *holder thereof; because this r*o-io-]
would not only be in violation of good faith, but also L
destructive of that public confidence which gives life and action
to such paper, and is so indispensably necessary to make it
answer the purpose intended. But I see no good objection to
having the true character of the original transaction exposed
and made known, when it is required, by the holder, in order
to promote his interest and security, more than there would be
to its being done between those who first framed it, which it is
admitted on all hands may be done, and is certainly every day's
practice. The testimony then, in this case, was not offered with
a view to invalidate the note; and was offered by the plaintiffs

349



312 SUPEEME COURT [Philadelphia

[Bank of Pennsylvania v. M'Calmont.]

who were the holders of the note. It was offered to show that
the witness, who was the last indorser on the note, was the real
debtor to whom the money was advanced by the plaintiffs, for
his own use, upon the note, and that he was to pay it, without
suffering the others, whose names were on it, to be called on for
that purpose, as they derived no advantage from it. In short,
to prove that the plaintiffs were the creditors of the witness at
the time he made his assignment, and that he was their debtor,
and consequently that they were embraced within the terms of
the assignment. I think that it was not only competent for the
plaintiffs to show all this, but that John Strawbridge, the last
indorser on the note, was a competent witness to prove it, and
that he was therefore properly received as a witness for that
purpose.

The testimony of John Strawbridge having been properly
received on the trial of the cause, establishes clearly that the note
was made for his accommodation and exclusive benefit, which
disposes of one of the objections made by the defendants to the
plaintiffs' recovery, that it was not an accommodation note.

But then it is further contended, that although it be an ac-
commodation note, the release by the plaintiffs of George Straw-
bridge, the drawer of it, discharged John Strawbridge, the in-
dorser, and that they therefore can have no claim as creditors of
him to any portion of the funds assigned by him to the defend-
ants for the payment of his ,debts.

To this it may be answered, that the plaintiffs did not execute
the release to George Strawbridge, until after they had executed
one in favour of John Strawbridge, in compliance with a con-
dition required by him in his assignment, in order to entitle them
to a certain grade of preference upon the fund assigned by him
for the payment of their debt. By this arrangement, I consider
that they are embraced by the terms of the assignment, which I
shall endeavour to show more fully in answer to the next objec-
tion, became absolutely entitled to their proper proportion of
this fund, which had been given up to them, or to the defendants,
for their use, with others, which is in effect the same, to be ap-
plied towards the payment of their debt, by the very man who,
in point of fact, was the real debtor, and so considered and
acknowledged by himself to be; and how or why the subse-
quent release of George Strawbridge could divest the plaintiffs
r*^i ^1 *^ their right to this fund, I cannot imagine. Such
- release could work no possible injury to John Straw-
bridge, nor yet to any of his creditors who had a claim upon
the fund in the hands of the defendants. I am therefore in-
clined to think that this release which was given by the plain-
350



l/arcA29,1833.] OF PENNSYLVANIA. 313

[Bank of Pennsylvania v. M'Calmont.]

tiffs to George Strawbridge, is no bar to the plaintiffs' recovery
in this action.

The next and last objection which has been raised against the
plaintiffs' recovery in this case, is, that they are not embraced
in the terms of the assignment made by John Strawbridge, which
are "to pay and discharge all the debts that were by him then
due, or were owing or growing due, to such of his creditors as
should," &c., and that the plaintiffs' claim does not fall within
this description. In support of this, it has been argued that
.John Strawbridge was not absolutely bound by his indorsement
to the plaintiffs for the payment of the amount of the note: That
his liability was only conditional and contingent ; and that the
nature and extent of his liability must be determined solely by
his indorsement, and according to its legal effect : That by his
indorsement he merely promised to pay the plaintiffs the amount
of th<-. note, provided they would present it at maturity to the
drawer, demand payment of him, and upon his failing to pay,
give immediate notice thereof to him, the indorser, but not
otherwise : That until all this had taken place, it could not
be said that John Strawbridge, the indorser, was indebted to
the plaintiffs anything upon his promise, and possibly never
might become so ; for if the drawer paid the note at maturity
upon its being presented to him for that purpose, neither lapse
of time, nor anything that the plaintiffs could do, would ever
make the indorser debtor to the plaintiffs or make them his
creditors ; but without indebtedness there could be no debt, and
as no debt ever existed, it could not be said that any was either
due, owing, or growing due; and consequently the plaintiffs did
not come within the provisions of the assignment. This all ap-
pears to be very specious, and I must confess that I was at first
so much taken with it as to incline to give in to it; but after re-
volving the whole case over and over again in my own mind,
and upon more full deliberation and inquiry in to the practice
and usage which have obtained under such assignments, and
especially in respect to those who have generally been consid-
ered and allowed to claim as creditors under them, I have come
to the conclusion that the plaintiffs are included in the terms of
the assignment, and entitled to recover.

The note having been given without consideration, for the ac-
commodation of John Strawbridge, no debt of any kind existed
until he got the note discounted, but as soon as that was done a
debt was created most clearly, and that too by his act, for his
own exclusive benefit; and under his agreement with the drawer
and payee of the note, he then became absolutely bound to pay
it at maturity, to the bonafide holders, whoever they might be.
Although not absolutely bound to pay by virtue of his inclorse-

351



314 SUPREME COURT [Philadelphia,

[Bank of Pennsylvania v. M'Calmont.]

p.,,-. 4-1 ment, yet, I conceive, that there cannot *be a material
-" difference if he were so upon any principle, and that he
was, under his engagement with the drawer and payee, is indis-
putable. It is clear, then, that a debt was created before the
assignment was made, and was growing due at that time; that
John Strawbridge, the assignor of the defendants, was in reality
the debtor, and the plaintiffs were the creditors, and that he was
under an obligation to pay them in any event. Indeed, under
a full view of the whole ground of the case, I cannot perceive
that his liability had the least shade of contingency about it.
On the contrary, I think it was certain, absolute, and unquali-
fied. Neither do I think it necessary that this absolute liabil-
ity should have arisen from this indorsement, nor that it should
have grown out of a promise made directly to the plaintiffs
themselves. It is sufficient that it existed at the time of the
assignment, and was connected with the note in such a way as
to follow and accompany it ; and this, I think, was clearly the
case. The plaintiffs held the note upon which they had ad-
vanced him the money, to be repaid according to the tenor of
it. To them payment was to be made, and to no others could
it be made as long as they kept the note. They, and they alone,
had the power to release the assignor of the defendants from
the payment of it ; unless, indeed, the drawer or payee had
paid it for him, which was not to be expected, because contrary
to their agreement with him when he obtained it from them.
The assignor of the defendants, sensible of his indebtedness,
and absolute liability and engagement to pay this note, either
at the time of, or shortly after making the assignment, made
out a list of all his creditors, in which, among others, the plain-
tiffs' names were inserted, with the amount of the note thereto
annexed, as the sum that was due to them, which he delivered
to the defendants as well as the assignment. The plaintiffs
had no claim whatever against him beside the one created by
discounting the note. They agreed to the assignment, and
accepted of it by fulfilling the condition thereby required of
them, in executing releases, which completely exonerated and
discharged the assignor from all liability, either direct or indi-
rect, absolute or contingent, for and on account of this note.
The release which was executed to himself, must be admitted
to be sufficient to extinguish all liability which he was under
to them directly; and the release which they gave to George
Strawbridge, the drawer of the note, not only discharged him,
but likewise the payee, so that neither of them could be made
liable to pay anything on account of the note or this debt, for
which they could look to John Strawbridge for indemnity.
This was all that the assignor sought for or required, in order
352



March W, 1833.] OF PENNSYLVANIA. 314

[Bank of Pennsylvania v. M'Calmont.]

to give to the plaintiffs the right and the preference which they
now claim; and he, having obtained his object to its fullest ex-
tent, within the time allowed for that purpose, they are justly
entitled to a due proportion of the trust fund, in return for
their concession to him. The right too, which is set up here
on the part of the plaintiffs, so far as I have been able to ascer-
tain upon inquiry, is sanctioned by the universal practice in
*allowing such claims, and in paying dividends upon p^o-i e-i
them under similar assignments; and the distinction L
which has been made, and so ingeniously and ably contended
for in this case, between absolute and contingent liability, has
not been regarded or attended to in adjusting and settling claims
and paying dividends out of funds assigned voluntarily by cred-
itors for the payment of their debts. Neither am I altogether
satisfied, that if it were attempted to be taken and acted on, the
task would be found to be altogether free from difficulty in
many cases that would arise. It was irisis.ed on by the counsel
for the defendants, that the promise of the indorser of a negoti-
able note, arising out of his indorsement by implication, was
merely conditional, and his liability, and the debt as to him,
purely contingent; yet the drawer of bills of exchange, whose
responsibility has sometimes been likened to that of the iu-
dorser of a negotiable note, where he is also the payee, and has
passed it away in the course of business, was, in the case of
M'Carty v. Barrow, 2 Stran. 949, ruled to have contracted the
debts the very instant when he drew the bills, and that the
non-acceptance or protest did not raise any debt, but was only
notice to the party who held the bills, that the drawee would
not pay the same ; and was as much as to say, " I will not pay
the bills ; you may go back to the drawer, and he must pay
you." And the court held the debts to be debita in presenti,
solvenda in futuro, by the drawer. See Ld. Chief Justice "Wil-
raot's report of this case, given in the opinion of the court de-
livered by him in Chilton v. Whiffin, 3 AVils. 17, which is more
full, and no doubt more accurate, than Sir John St range's. And
see also the case Ex parte Douthat, 4 Barn. & Aid. 07, where
the same principle was settled and certified by the judges of the
King's Bench, to the lord chancellor, in a case where the bill
was accepted and duly paid by the drawee. I however deem it
unnecessary to enter into a critical examination of this question,
and the cases and authorities which might be thought to have
a bearing upon it, as under the view which I have taken of the
case itself, I can entertain no doubt, but a debt was created by
John Strawbridge, the instant that he got the note discounted
by the plaintiffs, which by his own agreement, he was abso-
VOL. iv. 23 353



315 SUPREME COURT Philadelphia

[Bank of Pennsylvania v. M'Calmont.]

lutely bound to pay to the plaintiffs, or whoever should happen
honestly to hold the note, at the time it became payable.

The only thing which remains now to be considered and tet-
tled, is the rule by which the amount of the plaintiffs' demand
ought to be ascertained. Upon inquiry, I am induced to be-
lieve, that the rule which has been adopted generally in prac-
tice, where more than one of the persons liable to the payment
of a note or bill have failed, and made voluntary assignments of
their property for the purpose of paying their respective debts
and liabilities, is to take the amount actually due upon the note
or bill, at the times respectively at which the first dividend is
declared, of each fund so assigned. For example, take the case
before us : the first dividend was declared of the property
assigned by George Strawbridge, in February, 1823, when the
r*^1fi1 *tliirteen hundred and fifty dollars, the original amount
-" of the note, were due and altogether unpaid. This then
was the sum upon which, according to the rule observed in prac-
tice, the dividend ought to have been declared. It was accord-
ingly done so, and paid to the plaintiffs. Being ten per cent.,
it amounted to one hundred and thirty-five dollars, which re-
duced the plaintiffs' debt to twelve hundred and fifteen dollars,
which is the sum that the defendants, when they subsequently,
in March, 1823, and also since that, declared dividends, ought
to have allowed dividends on to the plaintiffs.

This rule possibly has been derived from that which seems to
have been adopted in England in cases of bankruptcy, which is,
to take the amount of the debt actually due at the time of the
creditor's first proving it against the fund. See Ex parte Wild-
man, 1 Atk. 109; s. c. 2 Ves. 113; Ex parte Royd and Ex
parte Bennet, cited 2 Ves. 114, and Ex parte Leers, 6 Ves. 644.
The only difference between the two cases seems to be, that in
the case of bankruptcy the amount of the debt due at the time
of the creditor's first proving it, is taken as the sum for which
9 dividend shall be allowed, but in the cases of voluntary as-
signments here, the amount due at the time of declaring the
first dividend of each fund respectively, is taken as the sum upon
which the dividend is to be allowed. I do not see any sufficient
reason why this rule, which has already been adopted in prac-
tice here, should not also be adopted by the courts ; for if it be
as well suited as any other to subserve the ends of justice, and
I think it is, it has at least the advantage of being known and
familiar to that portion of the community w r ho have the most
to do with it, which is no slight recommendation for its adop-
tion by the court. And indeed, it is highly probable, that from
the long experience which has been had of its operation, with-
out any attempt that we have heard of, to change it, it is quite
354



MircA29,1833.] OF PENNSYLVANIA. 316

[Bank of Pennsylvania v. M'Calmont.]

as equitable, just, and salutary, as any other that could be sub-
stituted.

We therefore direct the sum of each of the two dividends for
which this suit was brought, to be ascertained by this rule, that
interest be calculated on each from the time it was, it ought to
have been declared, and that judgment be entered for the aggre-
qj*Ute amount thereof in favour of the plaintiffs.

Judgment for the plaintiffs.

Cited by Counsel, 3 Wh. 536 ; 3 W. & S. 287 ; 4 W. & S. 289 ; 3 Barr, 384 ;

10 Barr, 396 ; 1 H. 48 ; 3 H. 62 ; 8 H. 470 ; 9 Wr. 155.

Cited by the Court, 5 Wh. 575 ; 8 W. 309 ; 3 W. & S. 558 ; 9 Barr, 508 ;

11 C. 482.

Approved and followed, 5 R. 173 ; but both these cases discussed and over-
ruled in 1 N. 114, s. c. 3 W. N. C. 82.



^PHILADELPHIA, MARCH 29, 1833.] [*317]

Poole against Williamson.

APPEAL.

Under the act of the 4th of April, 1798, the lien of a judgment is restricted
to a period of five years from the first return day of the term of which it is
entered, and the second period begins to run from the termination of the first.
Consequently, where a judgment has been once regularly revived by scire facias,
if ten years have elapsed from the first return day of the term of which the
original judgment was entered, a second revival by scire facias comes too late
as against an intervening mortgage.

THIS case came before the court on an appeal from the decree
of the District Court for the city and county of Philadelphia,
distributing part of the proceeds of the real estate of Poole,
which had been sold under a venditioni exponas. The decree
was brought into this court by Hester Golly, a judgment cred-
itor, under the provisions of the act of 16th of April, 1827,
"relative to the distribution of money arising from sheriff's and
coroner's sales." The facts were these : The proceeds of the
sale had been distributed by the sheriff, except the sum of four
hundred and thirty-six dollars, which had been paid into the
District Court, by which it was awarded to Sidney Williamson,
a mortgage creditor, to the exclusion of the judgment creditor
above mentioned. It appeared that Hester Golly, on the 29th
of April, 1817, entered a judgment for four hundred and thirty-
six dollars on a bond accompanied by a warrant of attorney,
to March Term, 1817. The bond was payable in one year from
the day on which judgment was entered on it. This judgment

356



317 SUPEEME COUET {Philadelphia,

[Poole v. Williamson.]

was revived by an amicable stire facias to March Term, 1822,
on which judgment was entered by agreement, on the 26th of
March of that year. A second scire facias was issued to June
Term, 1827, and by agreement indorsed on the writ on the 17th
of March, 1827, the day on which this scire facias issued, judg-
ment was entered therein. It was agreed that the first revival
by scire facias was good ; but it was contended, that
although the second scire facias issued within five years from
the date of the judgment in the first scire facias (March 26th,
1822,) yet, as it did not issue until more than five years from the
return day of the first scire facias, it was not good against the
mortgage of Sidney Williamson for two thousand dollars, dated
the 4th of February, 1820, and duly recorded.

The question was argued by Miles for the judgment cred-
itor, and by Chauncey for the mortgage creditor. The authori-
ties cited on the argument, were : Act of 4th April, 1798,
Purd. Dig. 421 ; Young v. Taylor, 2 Binn. 218 ; Pennock v.
Hart, 8 Serg. & Eawle, 377; Black v. Dobson, 11 Serg. &
Eawle, 95 ; Commonwealth v. Alexander, 14 Serg. & Eawle,
257 ; Lesher v. Gillingham, 17 Serg. & Eawle, 126.

*PER CUEIAM. The first revival is conceded to
have been in time ; and the question is as to the termi-
nation of the period to which it extended. The proceedings
were entirely under the act of the 4th of April, 1798, by which
the lien of a judgment is restricted to a period of five years
from the first return day of the term to which it was entered,
and the second period must consequently begin to run from the
termination of the first. Here, if the second period ended at